Swamped Agency Has Little Time to Police Doctors

By Peter PerlMay 22, 1983

Between 1976 and 1979, Dr. Marshall D. Nickerson Jr., a Washington physician, sold thousands of prescriptions for Dilaudid--a painkiller often used as a heroin substitute--to an individual who either filled the prescriptions or gave them to others to fill, according to a decision of the federal Drug Enforcement Administration.

In November 1979, Nickerson sold prescriptions for cocaine, Dilaudid and two types of amphetamines for a total of $2,200 in a two-day period, according to the DEA decision. Those prescriptions were sold under four names to the same individual, DEA said in its decision denying Nickerson a DEA registration to dispense drugs.

In addition to convictions on two counts of unlawful distribution of drugs that grew from these incidents, Nickerson also pleaded guilty in December 1979 to mail fraud in a scheme to bilk insurance companies of thousands of dollars in false medical claims, according to court records.

Then, in 1981, while employed at the city-run Upper Cardozo Clinic, Nickerson wrote prescriptions for a controlled substance even though he already had been stripped of his DEA registration to dispense drugs, DEA said in its decision published in the Federal Register.

Despite these incidents, Marshall Nickerson is today licensed to practice medicine in Washington.

The case is an example of the virtual impotence of the D.C. Commission on Healing Arts, which--due to inadequate funding and staffing, and governmental infighting--has been overwhelmed by a backlog of complaints and clerical duties that leave the commission unable to effectively and promptly police the city's 10,000 doctors.

In the last three years, the 11-member commission has taken one final action on a license revocation case, and has amassed a backlog of 174 complaints of illegal or unethical activities by doctors. Those complaints, most involving alleged overcharging or mistreatment, have not been investigated. In its lone final action, involving Dr. Samuel Rosser--convicted of illegal drug distribution in April 1979--the commission dropped its charges partly because of the delay in pursuing the case, according to commission records.

The backlog of work at the Healing Arts Commission is so immense that investigations of a small number of allegedly corrupt or incompetent doctors often must take a back seat to everyday clerical matters, the commission director said. In fact, he said, the agency has not even been able yet to reissue licenses to all the city's physicians, whose two-year licenses expired Dec. 31.

The commission received a congressional authorization of $400,000 for this fiscal year to cover a staff of 12 investigators and clerical workers, though the city has given it only $277,000. It currently has only two investigators, one clerical worker, and its director, P. Joseph Sarnella.

For three years after its creation in 1977, the commission's sole employe was Sarnella. No investigators were hired until December 1981, and the two investigators spend almost all their time on administrative duties, according to Sarnella.

"It is frustrating when you know there are a few doctors out there who are unethical, immoral or committing illegal acts . . . and the terrible thing is not having the funds to get to these cases sooner," said Dr. Pearl Watson, the former commission president whose three-year term expired last November.

Watson, in an interview, was sharply critical of Mayor Marion Barry's administration for failing to give the commission full funding even though its licensing fees generate an average of $700,000 yearly--more than enough to cover its costs.

"We generate our own money, but they took it and used it for things they felt were more important than protecting the health of the citizens and residents of the District of Columbia," Watson said.

"I raised it with the mayor. I sent him correspondence. I talked before the City Council--I don't know how many times--and I never got anywhere," Dr. Watson said. "Only when I testified before Congress did I get resounding support."

In testimony on Capitol Hill last week, commission director Sarnella said the agency still was not getting the money appropriated for it by the House Appropriations subcommittee.

Subcommittee Chairman Rep. Julian C. Dixon (D-Calif.) said he was highly disturbed that the District has withheld authorized funds. "This is very serious, in my opinion," he said. Dixon said his panel will again add money for the commission to the budget, and he said, "I will talk to the mayor's budget office about it."

Barry said at his monthly news conference last week that the cut in the commission's budget was an economy move. He pledged support for the agency's work and said Sarnella's testimony showed "a need for me to establish better liaison" with the commission to help speed its work.

Behind-the-scenes conflict between the Healing Arts Commission and the city administration has been a source of the commission's troubles, according to officials familiar with the commission's history since the city's Healing Arts Practices Act of 1976 amended a 1929 law.

The law creating the commission was passed over considerable opposition. Walter Washington, who was mayor at the time, opposed it because it scrapped a five-member body directly controlled by the mayor, and required instead that physicians and other professionals serve on the commission. Once it was created, the commission couldn't get funding and was forced to take its case directly to Congress, where it fared better.

"Because they went to the Hill they are alienated from the District Building," said one former commission member.

The commission sought to strengthen itself several years ago by proposing that one of its members be a lawyer from the Corporation Counsel's office. But the City Council cut out the position, and the commission instead has to request legal help each time it prepares a case.

"I look forward to the day when there is a competent, interested, concerned lawyer on staff so the business of protecting the health of the people can go forward," Watson said.

Dr. Alyce Gullattee, the current president, said that as a result of lengthy legal procedures combined with staffing constraints, "You feel virtually impotent to do what has to be done. People say we are not policing them, that we are just giving them a slap on the wrist."

In addition to its other problems, the commission has often lacked a quorum to conduct its monthly meetings, for which commissioners are paid $50 for attendance. Watson estimated that three or four meetings a year were canceled for lack of a seven-member quorum. The mayor makes appointments to the commission, which includes eight doctors and three consumer representatives.

With all its difficulties, the commission focuses its attention on the most flagrant cases of unethical or illegal activity, Sarnella said. "If we have a real serious case, we will give it top priority," he said, but added that the commission is often hamstrung because it lacks the manpower for investigation.

Because of the lack of staff, the commission refers many complaints to the D.C. Medical Society, which can censure doctors; ban them from the society, which makes malpractice insurance difficult to obtain; or recommend revocation of medical licenses.

Aside from the commission, U.S. District Court judges also are empowered to revoke medical licenses at the time of sentencing doctors in felony cases. In the past four years, about 12 doctors in Washington have been convicted of felonies, most of them drug-related, according to the U.S. Attorney's office. In about five cases, judges revoked licenses, officials said.

While some judges see revocation as an appropriate penalty, others believe it is a decision best left to a professional review panel. Among about half a dozen doctors who were convicted and who retained their licenses, three died before the commission acted, officials said, and the commission has taken final action only in the Rosser case.

In the Nickerson case, DEA's associate chief counsel Stephen Stone said, "There's no excuse for somebody like this to have a license. Certainly no later than January or February 1980 it should have been revoked."

The commission just concluded a hearing on the case two months ago and has yet made no decision.

In 1979, Nickerson was sentenced to six months in jail and a period of community service work after guilty pleas in the drug and mail fraud cases. His lawyer, Larry C. Williams Sr., said he and his client would not discuss the commission's case until the decision is made. "Dr. Nickerson has not been involved in any wrongdoing since 1979," said his lawyer, "and I don't think he intends to get involved in any future wrongdoing. He is getting his life straightened out."

In its only final action in the last three years, the commission began proceedings last September to revoke the license of Dr. Rosser, but after a hearing, decided in January to take no action. According to the hearing record, Rosser had been told by commission members several years ago that his license would not be revoked. When the commission changed direction and initiated revocation proceedings anyway, Rosser's lawyer, Othello Jones Jr., argued successfully that the commission should not act because Dr. Rosser had been denied a timely hearing.